Maneta Milton, Author
ABSTRACT
This article is comprehensive study on the section 138 of the Bhartiya Nyaya Sanhita (BNS) 2023. This article can also be considered as a comparative study on the 325 of the Indian penal code(IPC), 1860, both of which addresses the offense of the voluntarily causing grievous hurt . The BNS adds structural and linguistic clarity in accordance with modern draughting methods, but the substantive substance and penalty for the offense—which calls for a fine and up to seven years in prison—remain essentially the same. Judicial decisions and the previous IPC framework continue to serve as guidelines for the definition and application of “grievous hurt”. This contrast shows that the BNS’s reform, which aims to decolonise India’s criminal code while preserving uniformity in legal interpretation and enforcement, is evolutionary rather than revolutionary. The paper emphasises how the Indian criminal justice system maintains legal principles while modernising its procedures.
The article goes into additional detail about how Indian courts define serious pain, emphasising how they consider medical evidence, purpose, and the extent of the injury when assessing liability. For practitioners, law students, and academics, the categorisation of harm as “grievous” is crucial since it has significant implications for punishment and trial processes. This research aims to comprehend the practical implementation of Section 138 in light of current legal theories and procedural processes by studying seminal rulings and changing legal norms. The article also considers the provision’s applicability today, especially in light of growing worries about gendered violence, bodily autonomy, and the rights of those who are most vulnerable. It highlights how Section 138 serves as a legal tool to guarantee responsibility and justice as well as a protection against severe physical damage.
KEYWORDS: BHARATIYA NYAYA SANHITA, SECTION 138, GRIEVOUS HURT, CRIMINAL LAW, INDIAN JUDICIARY, BODILY HARM, LEGAL FRAMEWORK, JUDICIAL INTERPRETATION, CRIMINAL JUSTICE REFORM, MEDICAL EVIDENCE
INTRODUCTION
The colonial-era Indian Penal Code, 1860, has been replaced with the Bharatiya Nyaya Sanhita (BNS), 2023, marking a significant change in India’s criminal law system. Section 138 addresses the crime of voluntarily causing grave pain, which is a crucial category of bodily harm crimes in criminal law, among other things. This article offers a thorough examination of Section 138 BNS, going into its components, historical context, judicial interpretation, and current criminal law ramifications.
“ Whoever voluntarily causes grievous hurt shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”
The section largely reflects the provisions of Section 325 of the Indian Penal Code (IPC), albeit with linguistic simplification and structural reorganization for clarity.
Understanding “grievous hurt”
The concept of “grievous hurt” under Section 320 of the Indian Penal Code (IPC), 1860, is firmly anchored in the conventional sense, despite the fact that the Bhartiya Nyaya Sanhita (BNS), 2023 does not offer a recently defined term. This clause acknowledged the severe and frequently irreversible nature of certain physical injury by classifying certain injuries as grievous.
The following injuries are often included in grievous hurt:
- The loss of masculine sexual function is known as emasculation, and it is frequently handled with extreme legal sensitivity.
- Complete and irreversible loss of vision or hearing in one or both eyes or ears is known as permanent privatisation of sight or hearing.
- Loss of Any Member or Joint: A limb or joint may be amputated or cease to function.
- Destruction or Permanent Impairment of a Member or Joint: Injuries that cause a bodily part’s usefulness to be permanently diminished, even if it is not totally gone.
- Permanent Disfiguration of the Head or Face: Injuries that result in an irreversible change in appearance; sometimes pertinent in situations of assault and acid attack.
- Bone or Tooth Fracture or Dislocation: This phrase defines a fractured tooth as severe.
- Injury Endangering Life or Causing Prolonged Suffering: Any injury that puts the victim’s life in jeopardy, leaves them in excruciating physical agony for twenty days or more, or prevents them from engaging in daily activities during that time.
- These classifications affect the kind and severity of punishment under Section 138 BNS and are based on both medical and legal conclusions.
Ingredients of the offender under section 138
The prosecution must prove all necessary components of the offence beyond a reasonable doubt in order to obtain a conviction under Section 138 of the BNS. These consist of:
- Voluntariness:
The conduct must be deliberate or consciously performed, meaning that the accused either intended to cause the harm or knew that their acts would likely result in serious injury. Accidents or carelessness alone are insufficient.
- The Grievous of Pain:
The harm must strictly fall under one or more of the above-mentioned legally recognise categories of grave damage. This decision is heavily influenced by expert evidence and medical studies.
- Cause and Effect:
There must be a direct and obvious connection between the victim’s severe injuries and the accuser’s actions. This entails proving that the accused’s actions were the primary cause of the damage rather than an intervening factor or pre-existing condition.
COMPARISON ON SECTION 138 0F BNS AND SECTION 325 OF
UNDER IPC
The Indian Penal Code (IPC), 1860, which was enacted during the colonial era, was superseded by the Bharatiya Nyaya Sanhita (BNS), 2023, which represented a major overhaul in India’s criminal justice system. Section 138 of the BNS, which addresses the crime of wilfully causing great harm, is a noteworthy clause. This clause reflects continuity in the substantive law and closely relates to Section 325 of the IPC. The offence under both provisions is causing another person serious physical harm with knowledge or purpose. Both clauses carry a maximum sentence of seven years in jail and a fine. A Magistrate of the First Class can try the case, and the offence is still cognisable and subject to bail.
The BNS uses a more contemporary and structured framework in an effort to improve accessibility and clarity, even if the legal concept of “grievous hurt” is still based on the wording of Section 320 IPC.[1] The structural modification is a part of a larger attempt to modernise and decolonise India’s legal system, although it does not significantly modify how the law is interpreted or applied. As a result, despite conforming to a more modern legislative approach, Section 138 BNS preserves the fundamental legal concepts of Section 325 IPC. In this specific context, the action is viewed as a procedural and symbolic modernisation rather than a substantive law change.[2] In conclusion, even though Section 138 BNS is largely a restatement of Section 325 IPC, its inclusion in a new code represents India’s move towards a more streamlined and domestic legal system while upholding long-standing judicial norms and interpretations.[3]
To sum up the comparison Both clauses address severe harm that is intentionally or knowingly committed. Although BNS may create or make reference to such definitions independently in subsequent updates or related sections, the definition of “grievous hurt” is carried over from Section 320 IPC. Although the crime’s core stays the same, BNS seeks to streamline, restructure, and increase the law’s accessibility.[4]
PUNISHMENT UNDER SECTION 138
- Statutory Punishment Prescribed
The following penalty is outlined in Section 138 of the BNS for wilfully causing great harm. imprisonment with a maximum sentence of seven years, and the obligation to pay a fine
This is consistent with the punitive theory that states that major bodily injury offences should carry severe penalties in order to act as a deterrence and a form of retaliation.
- Nature of the Offence
Recognisable Offence: Without the magistrate’s previous consent, police can file a formal complaint and make an arrest. The accused is naturally entitled to request bail. Triable by Magistrate of the First Class: This shows how serious the offence is while guaranteeing that it stays under the magistrate-level court’s jurisdiction for prompt resolution.
- Sentencing Consideration
The severity and type of the victim’s injuries, the use of weapons or the existence of premeditation, and the relationship between the parties—for example, whether the incident took place in the context of domestic abuse—all influence the punishment amount under Section 138 of the Bhartiya Nyaya Sanhita. Sentencing is also heavily influenced by the accused’s actions both during and after the offence was committed. Courts use their judicial discretion to make sure that the sentence suitably reflects the seriousness of the offence and the circumstances surrounding it, governed by the principles of justice and proportionality. As a result, despite conforming to a more modern legislative approach, Section 138 BNS preserves the fundamental legal concepts of Section 325 IPC. In this specific context, the action is viewed as a procedural and symbolic modernisation rather than a substantive law change.
In conclusion, even though Section 138 BNS is largely a restatement of Section 325 IPC, its inclusion in a new code represents India’s move towards a more streamlined and domestic legal system while upholding long-standing judicial norms and interpretations.
- Plea Bargaining and Compounding Scope
Plea bargaining is allowed under Chapter XXI-A of the Code of Criminal Procedure (CrPC) even though severe harm is a serious offence, as long as the victim gives their assent and the offence is not committed against a woman, child, or member of a Scheduled Caste or Tribe. Under typical circumstances, compounding may not be allowed in situations involving grave harm; nevertheless, courts have occasionally adopted a restorative justice approach, particularly in first-time offenders where the harm was not deliberate or has been adequately compensated.[5]
SOCIO-LEGAL DIMENSIONS AND REAL-WORLD CHALLENGES
Investigating Cases of Grievous Hurt Presents Difficulties
Misuse of the Provision and False Implications
Section 138 is susceptible to abuse, just like many other penal laws. False accusations are sometimes used to settle personal scores or to apply pressure in family or property issues. Although the offence’s bailable character provides relief to the accused, abuse of this power jams the legal system and lessens the seriousness of legitimate crimes. Therefore, courts need to carefully balance defending victims with avoiding pointless lawsuits.
Justice Access for Under-represented Groups
In order to obtain justice, victims from marginalised groups—such as Dalits, Adivasis, women, or transgender people—frequently encounter structural obstacles. Even when they have suffered severe harm, law enforcement may minimise or not take their concerns seriously. Intersectional vulnerabilities in these situations increase the harm and necessitate a humane, rights-based response from the police and courts[6]
Impact on Public Health and Psychology
The Significance of Legal Literacy and Awareness
The administration of justice is nevertheless hampered by the general public’s ignorance of legal remedies and procedural rights. Many often, victims are unaware that their injuries might be considered serious injury or that they have the right to request medical and legal assistance. In order to guarantee that Section 138 is a living tool of justice rather than only a textual protection, legal literacy initiatives and community engagement are essential.[7]
CONCLUSION
In India’s criminal law system, Section 138 of the Bhartiya Nyaya Sanhita, 2023, which addresses wilfully causing great harm, is a crucial clause. It integrates within a modernised and reformed legislative framework that aims to streamline and simplify criminal justice while maintaining a careful continuity from the previous Indian Penal Code. By ensuring that actions that cause significant bodily injury are punished proportionately, the clause strikes a balance between the objectives of justice and the protections afforded to the accused by the right to a fair trial and the discretion of the judge in sentencing. A precise definition of “grievous hurt” is still necessary, not only for the judiciary and prosecution but also for the medical community and investigative officers, whose opinions have a significant impact on how these cases turn out. By focussing on purpose, the type of damage, and the reliability of the evidence—especially medical testimony—judicial interpretation has greatly influenced how Section 138 is applied. But problems still exist. The effectiveness of this legislative provision in practical situations is nevertheless impacted by problems such investigational procedural errors, abuse of the provision, socioeconomic obstacles victims encounter, and the lack of a restorative or rehabilitative emphasis. These elements highlight how crucial strong implementation, legal knowledge, and victim support systems are.
[1] Indian Penal Code , Section 320 (1860)
[2] Indian Penal Code , Section 325 (1860)
[3] Bharatiya Nyaya Sanhita, 2023, Gazette Notification, Ministry of Law and Justice (India), https://egazette.nic.in.
[4] Comparative Analysis of Indian Penal Code, 1860 and Bharatiya Nyaya Sanhita, 2023, The Legal Lock (Oct. 3, 2023), https://thelegallock.com/comparative-analysis-of-indian-penal-code-1860-and-bharatiya-nyaya-sanhita-2023.
[5] Understanding IPC Section 326A: A Legal Framework to Combat Acid Attacks and Its Impact on Victims, Vanta Legal, https://www.vantalegal.com/law-services/understanding-ipc-section-326a-a-legal-framework-to-combat-acid-attacks-and-its-impact-on-victims/.
[6] Grievous Hurt, Drishti Judiciary, https://www.drishtijudiciary.com/to-the-point/bharatiya-nyaya-sanhita-%26-indian-penal-code/grievous-hurt.
[7] Critical Analysis of Grievous Hurt Section 320, 326, IPC: A Case Law, ResearchGate, https://www.researchgate.net/publication/337416673_Critical_Analysis_of_Grievous_Hurt_Section_320_326_IPC_A_Case_Law.
